The British Constitution

What is a Constitution?

A constitution establishes the rules and principles that govern an organisation.

In the case of countries, all have one, and they define the fundamental political principles and establish the structure, procedures, powers and duties of a government.

Constitutions typically set out:

The division of government activities, outlining which structures will perform which tasks.

The power relationships between the various institutions.

The limitations upon the powers of rulers and guarentees the rights of the ruled.

Their purpose:

To provide legitimacy to those in power.

To protect the freedom; they restrain the power of those in office.

Encourage governmental stability; they indroduce a degree of order and predictability into government arrangements.

Draw attention to the goals and values that characterise a particular state.

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Characteristics of the British Constitution

Constitutions can be classified according to their characteristics:

Written or Unwritten, the terms of the British constitutions (with the exceptions of conventions) are all written somewhere. It is easier to classify Britain as uncodified;

Codified- In which all the main provisions are brought together in a single document. Uncodified- In which many of the constitutional values are written down but are not compiled into a single document.

Flexible or Rigid, flexible constitutions are rare and no laws are regarded as fundamental. In rigid constitutions, the principles are considered fundamental and amendment is therefore difficult.

Unitary or Federal, in unitary systems, all power is concentrated in the hands of the central government. In federal systems there is a divsion of power between a federal (central) govenrment and various regional units.

The Executive - The branch of govenrment responsible for directing the nation's affairs and the initiation and execution of laws and policies.

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Characteristics of the British Constitution

The Legislature - The branch of government responsible for discussing and passing laws and acting as a watchdog over the government.

Separation of Powers - The doctrine that political power should be divided between the Executive, Legislature and Judiciary, in order to prevent undue concentration of power.

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Aspects of the British Constitution

Uncodified - There is no single document in which most of the rules concerning the government of the country are borught together.

Quasi-Unitary - The countries of Northern Ireland, Wales and Scotland all have powers devolved to them while the Westminster parliament makes laws for all parts of the UK.

Flexible - The Constitution can be amended easily.

The basic elements of the Constitution rest on 3 major constitutional principles:

1. The Sovereignty of Parliament: the idea that parliament theoretically possesses and exercises unlimited authority. Only parliament can make and amend laws, no other insitution can override its decisions.

2. The Rule of Law: the principle that noone is above the law; that ministers, public authorities and individuals are subject to it.

3. The Fusion (rather than complete separation) of Powers: there is overlap between the executive and the legislature, while the judiciary is supposed to remain independent.

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Sources of the UK Constitution

Because of the way in which out political system has evolved over time, there are many sources that can be consulted in order to locate the elusive Consitution. These include:

Major consitutional documents that express important consitutional principles. The Magna Carta [1215] asserted the view that a monarch could and should be controlled by their subjects. It influenced common law and documents such as the 1689 Bill of Rights. It is considered one of the most important legal documents in the history of democracy.

Major acts of parliament that have an impact on the consitutional structure, in that they have changed the way we are governed or the relationships within the state. E.g. the Wales Act of 1998 established the Welsh National Assembly.

Common law. In common-law legal systems judges have the authority and duty to decide what the law is in the absence of any other authoritive statement. Common law is a body of rules that has evolved over a long period of time.

Constitutional conventions. Conventions are unwritten rules which ogvern political conduct. They are traditionally regarded as binding but have no legal force. E.g. Royal Assent [the monarch will always give consent to any bill that has passed through the parliamentary stages] no bill has been rejected by a monarch since 1707.

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Sources of the UK Constitution

European Union law. By joing the European Union in 1973, the UK agreed to accept a body of constitutional law that had already been passed on the creation of the European Union. This includes; primary legislation [as found in the Treaty of Rome] and secondary law [as found in EU regulations]. European law takes precedent over UK law, it is binding and applicable by UK courts.

The Bill of Rights 1689 - an act of parliament which has become a basic document of English consitutional law. It is largely a statement of certain positive rights which its authors considered that citizens living under a constitutional monarchy ought to possess.

The Human Rights Act - the statute which incorporated most of the rights contained in the European Convention of Human Right into UK law. It provides a remedy in the UK courts for any breach of a Convention right without the need for the complaint to go to the European COurt of Human Rights in Strasbourg.

Treaty of Rome 1957 - the agreeement by 6 western European countries to establish the EU.

Regulations - European law which is binding on all Member States of the EU without the need for any national legislation.

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Constitutional Change, Theory and Practise

Growth of interest in constitutional revision:

Constitutions are binding documents that are meant to last. Yet they are liable to undergo fundamental change; most European constitutions are 20th century creations. The Swiss version is now the oldest in the continent, dating from 1874.

In recent decades some constitutions have been rewritten or revised. More than two-thirds of those now in existence have been drawn up since the end of WW2. The purpose of this is to bring the formal documents up to date and make them more in tune with the country's governing arrangements.

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Constitutional Reform

Since Tony Blair's government (1997) there has been a number of constitutional reforms:

Removal of the hereditory peers in the House of Commons to jsut 92 (1999).

The Human Rights Act (1998).

The creation of the devolved parliament in Scotland and the devolved assembly in Wales (1998).

The Freedom of Information Act (2005).

The creation of the office of an elected London Mayor and Greater London Assembly via a referendum.

Consitutional Reform Act (2005) created the Supreme Court to take over judicial work from the House of Lords.

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A Written Constitution? For and Against

In Favour:

As the Constitution has evolved over centuries, there is nowwhere it can easily be accessed and seen. A written document would provide a clear statement of what is constitutional, removing the uncertainty of things.

There has been strong tendancy to execute dominance in British government, hence complaints about Britain having an 'elective dictatorship'. The government of the day can change the rules in its own interests. A codified Constitution could combat this.

It would provide an up-to-date statement of our rights, more relevant to our age than the European convention which is 50+ years old.

Key provisions would be entrenched (firmly established and difficult to amend).

It would be easier for the ocurts to interpret what is lawful behaviour and uphold the constitution.

It would have an educative value, highlighting the values of the political system.

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A Written Constitution? For and Against

Against:

The Constitution seems to work generally well, having survived over several hundred years and provieded the country with liberty and stability.

There is no widespread interest or demand for change.

The flexibility of British arrangements enables us to make adjustments as needs demand so that the constitution evolves according to circumstances.

The protection of rights has generally been good; there may be occasional blemsihes, but compared to many countries Britain has a strong record in respecting individual liberty.

It would be difficult to devise a new constitution which commands general approval.

Written constitutions can be rigid.

Even with a written constitution there is no guarentee of rights.

Written constitutions are not necessarily durable (France has had more than a dozen since 1789).